(dissenting). I agree with the majority that sec. 767.001(2m), Stats., gives Elizabeth the sole right to choose the religion of the parties' children. I do not join in the majority's discussion of the validity of the restriction under state law because Robert makes only a vague reference to that issue. I dissent because I disagree with the majority's conclusion that the free exercise clause of the first amendment to the United States Constitution cannot negate a validly enacted state law.
*387The majority bases its conclusion on Employment Div., Dep't of Human Resources v. Smith, 494 U.S. 872 (1990), a case holding that the first amendment permits a state to criminalize the use of peyote, when that drug is used in religious ceremonies of the Native American church.1 Specifically, the majority cites Employment Division as holding that the free exercise clause of the first amendment "does not include the right to engage in religious conduct, such as proselytizing, that runs afoul of an otherwise valid law." Majority op. at 383.
There are several problems with the majority's holding that a valid law cannot offend the free exercise clause of the first amendment. First, this interpretation of Employment Division can be reached only by a very selective reading of that case. What the Supreme Court really said was:
But the "exercise of religion" often involves not only belief and profession but the performance of (or *388abstention from) physical acts: assembling with others for a worship service, participating in sacramental use of bread and wine, proselytizing, abstaining from certain foods or certain modes of transportation. It would be true, we think (though no case of ours has involved the point), that a State would be "prohibiting the free exercise [of religion]" if it sought to ban such acts or abstentions only when they are engaged in for religious reasons, or only becáuse of the religious belief that they display.
Employment Div., 494 U.S. at 877 (emphasis added).
But that is not all the Employment Division Court said. It also discussed several cases in which it struck down validly enacted state statutes because they violated the free exercise clause of the first amendment. The Court said:
The only decisions in which we have held that the First Amendment bars application of a neutral, generally applicable law to religiously motivated action have involved not the Free Exercise Clause alone, but the Free Exercise Clause in conjunction with other constitutional protections, such as freedom of speech and of the press, or the right of parents ... to direct the education of their children.
Id. at 881 (citations omitted).
So we must look at the trial court's prohibitions to determine whether they not only offend the free exercise clause, but some other constitutional protection as well.
I agree with the majority that the trial court prohibited Robert from imposing his religious views on his children. The record shows that Robert does this by speaking to his children. Thus, the trial court's prohibition involves not only Robert's free exercise clause rights, but his right to freedom of speech, also protected by the first amendment, and his right to "bring up chil*389dren," Meyer v. Nebraska, 262 U.S. 390, 399 (1923), or to "direct the . .. education of [his] children," Pierce v. Society of Sisters, 268 U.S. 510, 534-35 (1925), protected by the fourteenth amendment.
I conclude that the trial court's prohibition involves not only the free exercise clause, but also the first amendment's protection of speech and the fourteenth amendment's protection of a parent's right to bring up or educate his or her children. Under Employment Division, that requires a discussion of whether the trial court's prohibition violates the free exercise clause. The majority's holding that a validly enacted law cannot violate the free exercise clause, though an easy answer, oversimplifies the inquiry. Were the majority correct, a validly enacted Wisconsin statute requiring school attendance for children between the ages of seven and sixteen could not offend the free exercise clause. But the Supreme Court has ruled to the contrary in Wisconsin v. Yoder, 406 U.S. 205, 234 (1972).
The majority's assertion that I misperceive its opinion points out the problem with its reasoning. The majority bases its opinion on Employment Division, a case which examines the conflict between a state statute and the free exercise clause. But, the state action that potentially infringes Robert's free exercise clause rights is a judicial act, not a legislative act. The majority's focus on "an otherwise valid law" and "Elizabeth's right under a valid law" is misdirected and leads to my conclusion that the majority holds that the free exercise clause cannot negate a validly enacted state law. Had the majority stopped with the statement that neither party attacks the validity or constitutionality of any state statute, the issue would have been more straightforward: Does the trial court's order abridge Robert's free exercise clause rights?
*390Once it becomes apparent that Employment Division does not provide an answer to this case, it is necessary to determine the proper test to use when a litigant asserts that a court order abridges his or her rights under the first amendment's free exercise clause. Given the potential for conflict when religious views clash, it is not surprising that many courts have examined the effect of the free exercise clause in family law cases.
The Wisconsin Supreme Court has previously considered the weight to be afforded the parents' religious beliefs in a custody determination. It is inappropriate for a court "to consider the family's religion or to favor one parent over the other in a custody determination on the basis of the parent's attitudes toward religion or the parent's religious affiliation." Gould v. Gould, 116 Wis. 2d 493, 503-04, 342 N.W.2d 426, 432 (1984).2
The question of whether parents' conflicting religious beliefs may be considered by a court in fashioning visitation privileges, however, is one of first impression in this state. Courts in other jurisdictions have passed upon this issue. See Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983), and cases collected therein.
In a leading case, In re Murga, 163 Cal. Rptr. 79 (Cal. Ct. App. 1980), the mother requested that the father's visitation be conditioned upon his willingness to engage in only such religious teachings as the mother approved. She asserted that as a result of the father's imposition of strict Protestant attitudes and practices, "the child hate[d] religion and refuse[d] to go to church *391with her." Id. at 80. Rejecting the mother's contention that she had an absolute right to direct the child's religious upbringing, the California Court of Appeal observed:
[I]n the majority of American jurisdictions that have considered the question, the courts have refused to restrain the noncustodial parent from exposing the minor child to his or her religious beliefs and practices, absent a clear, affirmative showing that these religious activities will be harmful to the child. The refusal to intervene in the absence of a showing of harm to the child reflects the protected nature of religious activities and expressions of belief, as well as the proscription against preferring one religion over another.
Id. at 82 (citations omitted; emphasis added).3
In Felton v. Felton, 418 N.E.2d 606 (Mass. 1981), the father became a member of the Jehovah's Witnesses after separating from the mother. The father's sect of *392Jehovah's Witnesses forbade celebrations of birthdays and Christmas and disapproved of holiday symbols such as the Easter bunny and Santa Claus. Id. at 608-09. The trial court granted the mother's request to forbid visitation unless the father refrained from "instructing the children in his religion." Id. at 606.
The Supreme Judicial Court of Massachusetts reversed, rejecting the trial court's assumption that differences of religion, at least where one of the parents is a religious zealot, have such a grave, damaging effect on the children as to require the censorship imposed by the judgment. The appellate court said: "The [trial court's] assumption is far from self-proving." Id. at 610; see also Munoz v. Munoz, 489 P.2d 1133, 1136 (Wash. 1971) (duality of religious beliefs, per se, does not create a conflict in young children's minds).
Courts have insisted that a parent seeking to enjoin religious activities during visitation clearly demonstrate that exposure to conflicting religious beliefs will be harmful to the child. "[H]arm to the child from conflicting religious instructions or practices . . . should not be simply assumed or surmised; it must be demonstrated in detail." Felton, 418 N.E.2d at 607, The custodial parent must make a factual demonstration that the conflicting religious beliefs are, or will be, emotionally damaging to the children. Brown v. Szakal, 514 A.2d 81, 84 (N.J. Super. Ct. Ch. Div. 1986). "[M]ere conclusions and speculation" will not suffice. Robertson v. Robertson, 575 P.2d 1092, 1093 (Wash. Ct. App. 1978).
In LeDoux v. LeDoux, 452 N.W.2d 1 (Neb. 1990) (per curiam), the Nebraska Supreme Court upheld an order similar to the one at issue here. In LeDoux, the father became a Jehovah's Witness shortly before he separated from the mother, a Catholic. At trial, a clinical psychologist testified that the conflicts between the two *393religions contributed to the stress felt and manifested by the child. Id. at 3. He stated: "[W]ithout any further development and work between [the child] and his father, I do believe [the child] would experience very substantial stress." Id. at 4. Similarly, in Morris v. Morris, 412 A.2d 139, 147 (Pa. Super. Ct. 1979), the court upheld a visitation restriction where a clinical psychologist testified that "the inconsistent teachings would probably result in some mental disorientation" to the child.
By contrast, the court in Felton found the mother's testimony deficient because there was "a failure of proof about [the child's] physical and emotional condition or about any causal connections between her visits with her father and that condition, such as it may have been." 418 N.E.2d at 610. And in Compton v. Gilmore, 560 P.2d 861, 863 (Idaho 1977), the Idaho Supreme Court rejected a restriction where "the court's sole relevant finding of fact was that the child exhibited 'strange,' 'unusual' and 'aggressive behavior' after visits with her father. No finding was made that such behavior was in any way caused by the religious differences of the parents." (Emphasis in original.) See also In re Mentry, 190 Cal. Rptr. 843, 847 (Cal. Ct. App. 1983) (evidence is manifestly insufficient when it consists only of testimony by the mother concerning her distress at the father's religious activities with the children, and speculation by a counselor who had never seen or interviewed the children).
I do not suggest that emotional harm may only be established by expert testimony. Acceptable types of proof were catalogued in Pope v. Pope, 267 S.W.2d 340 (Mo. Ct. App. 1954), where the court observed:
*394Conceivably a parental dispute over religion might be waged in such a manner as to create in the mind of the innocent victim a deep-seated religious conflict which eventually would affect, or threaten to affect, the child's mental health. . .. But that is not the situation here, so far as this record discloses. Plaintiff gave brief testimony, in seven words, that "There is a conflict in his mind." She did not explain or enlarge on this bare statement except to give her opinion that the question becomes increasingly important as the child grows older. She did not testify to any facts from which it might be inferred that it is a serious conflict, or that his welfare has been adversely affected thereby. She gave no testimony whatever that his general demeanor, attitude, school work, appetite, health or outlook has been affected one iota by the so-called conflict in his mind.
Id. at 343 (emphasis added). However, expert testimony can be valuable in deciding matters of this nature.
The trial court's findings in this case, that the conflicting religious beliefs were ”confus[ing]" and "detrimental" to the children, do not meet the "harmful to the child" test required by In re Murga and other cases which have addressed this issue. "General testimony ... that the child was upset or confused" will not, by itself, support restriction. Felton, 418 N.E.2d at 610. The trial court must identify specific examples of emotional harm caused by the religious conflict.
When a trial court's findings are inadequate to support its exercise of discretion, we independently review the record to determine whether it provides a basis for the trial court's exercise of discretion. State v. Pharr, 115 Wis. 2d 334, 343, 340 N.W.2d 498, 502 (1983). I do not locate sufficient evidence of record to support the trial court's decision to impose restrictions on Robert's exercise of his religious beliefs.
*395Elizabeth testified concerning the disruptive effect Robert's views were having on her ability to parent the children. She stated that it was her opinion that exposing the children to conflicting religious ideas was "not good" and had "to have some [e]ffect on them." She also stated:
I want [Robert] to believe whatever he wants. But when it causes undue stress and disorientation in children, then something has to be done about it.
Elizabeth did not testify, however, that the children were experiencing emotional harm as a result of the disparate religious beliefs. Nor did she identify specific examples of how the conflict had affected her children's behavior or school work or their physical or mental health. See Pope, 267 S.W.2d at 343.
The majority does not concern itself with this lack of proof. Instead, it generates its own facts to support its conclusion. Apparently, under these facts, the children are in ill health as a result of Robert's religious discussions. The children "bear" some grossly unfair burden, though what that burden is or how that burden affects them is unarticulated. Usually, appellate courts look to trial courts to determine the facts of the case. If the majority were to do that, it would have to conclude that what Robert has done is to take the children to church, visit with them about religion and attempt to impose his religion on them.
The unfortunate result of the majority's decision is that three young girls will be deprived of a relationship with their father. True, Robert could obey the trial court's order and refrain from discussing religion with his children. But, his religious beliefs do not afford him that choice. As Robert candidly explained to the tried *396court, when he is forced to choose between God's law and the judge's order, he must obey God's law.
Notwithstanding its protestations to the contrary, the majority's rejection of all relevant precedent suggests that what is really at work here is the majority's belief that Robert's religious views are incorrect. See maj. op. at 385. This may be easy to do because Robert's church, the Good News Messengers, is not a well-known religion, and its views áre probably not widely held. But Robert could be making the same arguments were he a member of the Catholic church attempting to impose his beliefs on his children as to birth control, abortion, homosexuality and women in the priesthood, over the strenuous objection of a previous wife. How Wisconsin judges feel, about religious issues should not be the basis for conditions of physical placement. "Intervention in matters of religion is a perilous adventure upon which the judiciary should be loathe to embark." Donahue v. Donahue, 61 A.2d 243, 245 (N.J. 1948).
Ultimately, the overriding problem with the majority's analysis is its refusal to recognize that there is any rule or test to determine whether state action in any form is overridden by the free exercise clause of the first amendment or article I, section 18. "This state need not require harm to the children before protecting Elizabeth's rightful choice." Majority op. at 385. "To the extent that other jurisdictions have implicitly set that price, we reject their decisions.” Id. Though the majority disclaims its result, the inevitable conclusion reached is that because Elizabeth was granted the right to choose the children's religion by a valid statute, a judge's order made pursuant to that statute cannot violate the free exercise clauses of the United States and Wisconsin Constitutions.
*396aThere is a test for deciding free exercise conflicts. In Yoder, 406 U.S. at 215, the Court said:
The essence of all that has been said and written on the subject is that only those interests of the highest order and those not otherwise served can overbalance legitimate claims to the free exercise of religion. We can accept it as settled, therefore, that, however strong the State's interest in universal compulsory education, it is by no means absolute to the exclusion or subordination of all other interests.
The state interest in Yoder was to educate children until age sixteen. The religious belief was that school attendance beyond grade school would endanger the children's salvation. The state's interests lost out to the free exercise clause. Id. at 234. Put another way, we apply the "strict scrutiny" test to attempted governmental encroachment on the free exercise clause. Hobbie v. Unemployment Appeals Comm'n, 480 U.S. 136, 141-42 (1987).
It is no wonder, therefore, that courts that have considered cases similar to the Langes' situation have applied the "grave harm" test to states' attempts to limit a noncustodial parent's desire to explain religious beliefs to his or her child.
The majority does not explain why Wisconsin ought to stand alone in requiring no test to determine whether state action passes constitutional muster. Rejecting the opinions of the other states is a decision, but not an explanation.
Since I have concluded that the record does not support the trial court's decision to restrict Robert's visitation, the question of an appropriate mandate arises. In In re T.R.M., 100 Wis. 2d 681, 688-89, 303 N.W.2d 581, 583-84 (1981), the court concluded that in domestic law controversies, a remand for findings is appropriate. Were *396bI writing for the majority, I would remand so that the trial court could, after evidentiary proceedings, find whether Robert's actions had a grave, damaging effect on the parties' children. If the trial court could cite specific examples demonstrating such an effect, then it would be justified in entering an order which would abridge Robert's first amendment rights.
RECONSIDERATION of the decision filed March 18, 1993.
Dated: May 18, 1993.
Before Gartzke, P.J., Dykman and Sundby, JJ.
GARTZKE, P.J. Robert Lange has petitioned for review. We may reconsider our decision. Rule 809.24, Stats. On reconsideration, we confirm our decision.
Robert asserts that we failed to consider his constitutionally based "parental rights" claim. He bases his parental rights claim on three United States Supreme Court cases: Meyer v. Nebraska, 262 U.S. 390 (1923); Pierce v. Society of Sisters, 268 U.S. 510 (1925); and Wisconsin v. Yoder, 406 U.S. 205 (1972).
When invalidating a state statute which restricted teaching in foreign languages, the Meyer court referred to the right to "bring up children" as a liberty protected by the fourteenth amendment. 262 U.S. at 399. The Pierce court invalidated a state compulsory public school attendance statute because it "unreasonably interfere^] with the liberty of parents and guardians to direct the upbringing and education of children under their control." 268 U.S. at 534-35. The Yoder court struck down the convictions of Amish parents who had violated another school attendance statute on religious grounds.
Because, however, Elizabeth has legal custody of the children, sec. 767.001(2m), Stats., vests in her the sole *396cright to make major decisions for the children, including the right to choose their religion. Consequently, the statute deprived Robert of that specific parental right. He has not challenged the constitutionality of the statute, and the decisions of the United States Supreme Court on which he relies are therefore not on point.
Robert states that Elizabeth's right under sec. 767.001(2m), Stats., to choose the religion for their children does not extinguish his constitutional right to have input regarding the children's upbringing and values. But to the extent he desires to have input into the children's choice of religion, he lost that right.
Robert asserts in his petition' that although he did not attack the facial constitutionality of sec. 767.001(2m), Stats., he challenged it as applied if it is "construed to give the custodial parent an absolute veto over religious speech uttered by the non-custodial parent." Robert's brief contains no such attack. In any event, we have not construed the statute to give such a veto to the custodial parent. The statute gives the custodial parent the choice of religion for the children, and we construe it to provide that parent with protection from subversion of his or her choice.
Robert asserts that Employment Division v. Smith, 494 U.S. 872, 881-82 (1990), is not on point because there the court distinguished the case before it as not involving a hybrid situation, such as a free exercise claim connected with a parental right. We repeat: Robert lost the parental right to choose his children's religion, he lost the right by operation of sec. 767.001(2m), Stats., and he has not claimed that the statute violates the constitution. We do not have a hybrid situation before *396dus any more than did the United States Supreme Court in Employment Division.
By the Court. — The decision filed in this case on March 18, 1993, is confirmed.
The majority only mentions article I, section 18 of the Wisconsin Constitution in passing because Robert does not argue that this provision should be applied differently from the first amendment. Although Robert relies on article I, section 18, he ignores cases such as State by Cooper v. French, 460 N.W.2d 2 (Minn. 1990), where the Minnesota Supreme Court concluded that the Minnesota Constitution grants far more protection of religious freedom than the first amendment. A plurality of the Cooper court used Wisconsin authority, State ex rel. Weiss v. District Bd. of School Dist. No. Eight of Edgerton, 76 Wis. 177, 44 N.W. 967 (1890), as a basis for its holding. The portion of article I, section 16 of the Minnesota Constitution emphasized by the court in Cooper is identical to a portion of article I, section 18 of the Wisconsin Constitution. The opportunity for argument is apparent. But Robert does not cite either Cooper or Employment Division. Thus, given a clean slate, the majority could have pursued a Cooper analysis. But it did not, and I conclude that a dissent is an inappropriate place to pursue that analysis.
Under ch. 767, Stats., the legal custodian of the child is charged with the "right and responsibility to make major decisions concerning the child," sec. 767.001(2)(a), Stats., including "decisions regarding ... choice of... religion," sec. 767.001(2m), Stats.
For cases in accord with the majority rule as articulated in In re Murga, see In re Mentry, 190 Cal. Rptr. 843, 846-48 (Cal. Ct. App. 1983); Compton v. Gilmore, 560 P.2d 861, 863 (Idaho 1977); Felton v. Felton, 418 N.E.2d 606, 607 (Mass. 1981); In re Hertford, 586 S.W.2d 769, 772 (Mo. Ct. App. 1979); Pope v. Pope, 267 S.W.2d 340, 343 (Mo. Ct. App. 1954); Peterson v. Peterson, 474 N.W.2d 862, 871-72 (Neb. 1991) (per curiam); LeDoux v. LeDoux, 452 N.W.2d 1, 5 (Neb. 1990) (per curiam); Sanborn v. Sanborn, 465 A.2d 888, 893-94 (N.H. 1983); Brown v. Szakal, 514 A.2d 81, 84-85 (N.J. Super. Ct. Ch. Div. 1986); Paolella v. Phillips, 209 N.Y.S.2d 165, 167 (N.Y. Sup. Ct. 1960); Morris v. Morris, 412 A.2d 139, 143-44 (Pa. Super. Ct. 1979); Munoz v. Munoz, 489 P.2d 1133, 1135-36 (Wash. 1971); Robertson v. Robertson, 575 P.2d 1092, 1093 (Wash. Ct. App. 1978). See also Annotation, Religion as Factor in Child Custody and Visitation Cases, 22 A.L.R.4th 971 (1983).